Prosecutorial Discretion in an Adversary System

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BYU Law Review
Volume 1992|Issue 3 Article 4
9-1-1992
Prosecutorial Discretion in an Adversary System
Kenneth J. MeUlli
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Recommended Citation
Kenneth J. MeUlli,Prosecutorial Discretion in an Adversary System, 1992 BYU L. Rev.669 (1992).
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Prosecutorial Discretion in an
Adversary System
Kenneth J. Melilli*
I was a prosecutor for nearly five and quite
possibly, nothing else I ever do will so neatly define who I am
in the eyes of others. Many students, colleagues, neighbors and
others that I encounter have an unwarranted confidence that
they understand my politics, ethics, ambitions and personality
based upon little more than the fact that I once held this
seemingly telling po~ition.~
I have often resisted, and sometimes even resented, this
stereotype. In fairness, however, I must confess that I
identified myself, at least professionally, as a prosecutor. I did
not consider myself a lawyer as such; lawyers were people who
represented specific clients. I viewed myself as having a very
different role, a view shared by many of my prosecutor
colleagues. My understanding was that my obligation as a
prosecutor was to the public interest, an obligation
fundamentally different than that of lawyers to their private
clients.
Moreover, my image of the prosecutorial function was
developed even before I became a prosecutor. At least in my
case, my view of a prosecutor as one not obliged to the interests
of a particular client was precisely what initially attracted me
to the profession. Like many of my fellow law students, and
* Professor of Law, Albany Law School of Union University. I gratehlly
acknowledge the contributions of Suzi McClosky, Maureen Sladek, and, in
particular, Patricia Taylor.
1. From September 1982 through March 1986, I was an Assistant United
States Attorney in the District of Columbia. From April 1986 through May 1987, I
was an Assistant United States Attorney in Vermont.
2. This is not to suggest that there has been any consensus among people as
to the specific politics, ethics, ambitions and character traits of prosecutors. It is
merely to suggest that the idea of a "prosecutor" seems to carry with it a much
more personal definition than a host of other occupations, including the more
generic identification of an individual as a lawyer.
670 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I992
like many of my own students today,3 I had some personal
reservations about my role as a lawyer in an adversarial
system of dispute resolution. Consequently, I regarded the
special obligation of prosecutors to "seek justice'" not as an
additional burden, but rather as the fundamental attraction of
the position. I viewed the obligation to "seek justice" as a
liberation from the uneasy commitment to private interests
inherent in the "ordinary" practice of law.5
No doubt, people choose to become prosecutors for a variety
and combination of reason^.^ There are very few, if any,
comparable opportunities for relatively novice lawyers to gain
valuable and marketable courtroom experience. For many, that
experience is foreseen as challenging and enjoyable. For some,
the position offers a degree of prestige and future political
opportunity. Some-fortunately a very few in my experi-
ence-are driven by an overzealous and insatiable desire to
rescue the world from criminals. But what may be surprising to
the reader unfamiliar with prosecutors is that many arrive at
the position motivated, at least in part, by disaffection for the
"hired gun" model of private law practice. Indeed, I was by no
means alone in my ambition to prosecute as a means of
accomplishing an objectively different, and subjectively
superior, code of conduct. Moreover, my guess is that many
current fledgling and hopeful prosecutors will find a familiar
chord in the above refrain.
3. See Lon L. Fuller & John D. Randall, Professional Responsibility: Report of
the Joint Conference, 44 A.B.A. J. 1159, 1159 (1958).
4. MODELC ODEO F PROFESSIONREASLPO NSIBILITYE C 7-13 (1983) [hereinafter
MODELC ODE]. See also MODELR ULES OF PROFESSIONACLO NDUCT Rule 3.8 cmt.
(1991) [hereinafter MODELR ULES].
5. Because the prosecutor has no identifiable client, he or she must make
decisions ordinarily made bjr the client. John S. Edwards, Professional
Responsibilities of the Federal Prosecutor, 17 U. RICH. L. REV. 511, 513 (1983);
John Kaplan, The Prosecutorial Discretion-A Comment, 60 NW. U. L. REV. 174,
180 11.15 (1965). But, in the words of former Associate Attorney General Stephen
Trott:
I can't think of a better job than to be a prosecutor. It's an absolutely
amazing opportunity. It's a luxury of a lifetime to be able to pursue only
those things that are right. You are unencumbered by the bad ideas of a
client who is paying you money. You are only encumbered by your own
desire to do the right thing and to make sure that justice is done.
Stephen Trott, Address to J. Frank Coakley National Symposium on Crime (May
1987), quoted in JOHNJ. DOUGLASSE, TMCALIS SUESI N PROSECUTION31 (1988).
6. See George T. Felkenes, The Prosecutor: A Look at Reality, 7 SW. U. L.
REV. 98, 99 (1975).
6691 PROSECUTORIAL DISCRETION 671
Is there some point to this monologue other than personal
remembrances or soulful comradery? I think there is. In fact, I
believe the way prosecutors view their roles in the adversary
system provides the most useful tool for unraveling the difficult
and perplexing problem of prosecutorial ethics.
The purpose of this article is to examine the prosecutorial
function from the perspective of the prosecutor. The specific
context for this examination will be the prosecutor's charging
decision, which is the most significant aspect of the
prosecutorial function. The issue is whether, and to what
extent, a prosecutor's personal assessment of a defendant's
&t should affect those charging decisions. The article
examines the extent to which the model of all lawyers as
adversaries for the interests of their clients does, and should,
influence a prosecutor's charging decision.
Part I of the article explores the need for prosecutorial
charging discretion, the nature and extent of that discretion,
and the various existing external constraints upon that
discretion. Part I1 compares various self-imposed standards for
the exercise of that discretion. Part I11 investigates
institutional and other factors affecting the prosecutor's
exercise of charging discretion. Part IV then examines the
impact of the adversary model of lawyer behavior upon the
prosecutorial charging function. Finally, Part V offers
recommendations for prosecutorial standards in the exercise of
charging discretion.
The decision to charge an individual with a crime is the
most important function exercised by a prosecutor. No
government official can effect a greater influence over a citizen
than the prosecutor who charges that citizen with a crime.' In
many cases, the prosecutor determines the fate of those
ac~used,a~t least in those cases where the evidence or
statutory sentencing structure renders the ultimate outcome of
the prosecution largely a foregone conclu~ionE.~v en when the
7. DAVIDM . NISSMAN& ED HAGEN,T HE PROSECUTFIOUNNC TION2 (1982);
Robert H. Jackson, The Federal Prosecutor, 31 J. AM. INST. CRIM. L. &
CRIMINOLO3G Y(1 940).
8. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARv. L. REV.
152 1, 1522 (1981) [hereinafter Vorenberg I].
9. Id. at 1525-26.
672 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I992
criminal charge does not result in conviction, the mere filing of
a criminal charge can have a devastating effect upon an
individual's life,'' including potential pretrial incarceration,"
loss of employment,12 embarrassment and loss of
reputation,13 the financial cost of a criminal defense,14 and
the emotional stress and anxiety incident to awaiting a final
disposition of the charges.15 Such consequences may well have
a permanent effect that is not cured even by an acquittal at
trial.16 As a consequence, many prosecutors do, and all should,
regard the possibility of charging an innocent person as "the
single most frightening aspect of the prosecutor's job."17
In exercising the charging function, the prosecutor enjoys
broad, indeed virtually unlimited, discretion.'' Indeed, the
prosecutor has been fairly described "as the single most
powerful figure in the administration of criminal justi~e."'~
The prosecutor determines not only which cases and
defendants to prosecute2' but also which charges to bring?
10. NISSMAN& HAGEN,s upra note 7, at 13.
11. FRANKW . MILLER, PROSECUTIOTNHE: DECISION TO CHARGEA SUSPECT
WITH A CRIME 3 (1969); Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A
Conceptual Framework, 15 AM. J. CRIM. L. 197, 232 n.152 (1988).
12. MONROEH . FREEDMANL, AWYERS' ETHICS IN AN ADVERSARY SYSTEM 84
(1975) [hereinafter FREEDMANI] ; MONROEH . FREEDMANU, NDERSTANDINLGA WYERS'
ETHICS2 18 (1990) [hereinafter FREEDMA11N1; Fisher, supra note 11, at 232 n.152.
13. KENNETH C. DAVIS, DISCRETIONARJYU STICAE :P RELIMINARYIN QUIRY1 90
(1969); FREEDMANI , supra note 12, at 84; FREEDMANU , supra note 12, at 218;
MILLER,s upra note 11, at 3; Fisher, supra note 11, at 232 n.152; Vorenberg I,
supra note 8, at 1525.
14. FREEDMANI , supra note 12, at 84; FREEDMAN11 , supra note 12, at 218;
MILLER, supra note 11, at 3; Fisher, supra note 11, at 232 n.152; Vorenberg I,
supra note 8, at 1525.
15. FREEDMANI , supra note 12, at 84; FREEDMAN1 1, supm note 12, at 218;
Fisher, supra note 11, at 232 n.152; Vorenberg I, supra note 8, at 1525.
16. Ke~ethE. North, Policy Guidelines-Exercise of Prosecutorial Discretion, 15
THE PROSECUT1O32R, 133 (1979).
17. NISSMAN& HAGEN,s upra note 7, at 13.
18. See, e.g., Pugach v. Klein, 193 F. Supp. 630, 634 (S.D.N.Y. 1961); NATIONAL
DIST. ATTORNEYS ASS'N, THE PROSECUTOR'S SCREENING FUNCTIONC: ASE
EVALUATIONA ND CONTROL5 (1973); Charles P. Bubany & Frank F. Skillern,
Taming the Dragon: An Administrative Law for Prosecutorial Decision Making, 13
AM. CRIM. L. REV. 473, 474 (1976); Sarah J. Cox, Prosecutorial Discretion: An
Overview, 13 AM. CRIM. L. REV. 383, 418 (1976); Vorenberg I, supra note 8, at
1525; James Vorenberg, Narrowing the Discretion of Criminal Justice Officials,
1976 DUKE L.J. 651, 678 [hereinafter Vorenberg 111.
19. Bubany & Skillern, supra note 18, at 477.
20. Id. at 476.
21. Id. at 480-81. This decision may be of greater practical significance than
the decision to charge. For example, it may be a foregone conclusion that an
individual who sells controlled substances to an undercover officer will be
6691 PROSECUTORIAL DISCRETION 673
The prosecutor generally retains the discretion to revisit the
initial charging decision, either by reinstating voluntarily
dismissed charges or by dismissing or altering previous
charges.22A decision not to prosecute, or to dismiss a pending
prosecution, may be made even in the face of sufficient
evidence for con~ictionA.~n~d indeed, a substantial percentage
of arrests results in either declined or voluntarily aborted
prosecution^.^^ The extent of this discretion has been
described as "the central issue today" in the American criminal
justice system.25
Some authors have charged that the concentration of
discretionary power in the prosecutor is ~nnecessary,~~
"resulting from default rather than a conscious legislative
judgment."27 Some have opined that charging deci-
sions-particularly decisions not to prosecute-are sometimes
made for political, personal or other capricious reason^.^' As a
result, there is a growing demand for some limitation upon
prosecutorial discreti~n;~e ither by legislati~n,a~d~m inis-
trative reg~lation,~or' centralized decision-making within the
prosecuted. But the decision to charge the offense as either a felony sale or a
misdemeanor possession, perhaps based upon the quantity of drugs involved, may
be of terrific consequence to the defendant in terms of likely punishment.
22. Id. at 478. Although office policies may determine charging decisions to a
degree, individual prosecutors also exercise considerable discretion in the cases
assigned to their personal attention. Fisher, supra note 11, at 205, 255. In some
cases, individual prosecutors in nonsupervisory positions may possess and exercise
authority to charge or dismiss individual cases. Even when the formal authority to
charge or dismiss is limited to prosecutors in supervisory positions, however, line
assistants still can exercise great influence upon those decisions by virtue of their
superior familiarity with the cases assigned to their individual caseloads.
23. Wayne R. LaFave, The Prosecutor's Discretion in the United States, 18 AM.
J. COMP.L . 532 (1970).
24. Cox, supra note 18, at 392.
25. Jack M. Kress, Progress and Prosecution, 423 ANNALSA M. ACAD. POL. &
SOC. SCI. 99, 109 (1976).
26. DAVIS,s upra note 13, at 222.
27. Vorenberg 11, supra note 18, at 680.
28. DAVIS,s upra note 13, at 224.
29. DAVIS,s upra note 13, at 165, 216-17; DOUGLASSs,u pra note 5, at 226-27;
Bubany & Skillern, supra note 18, at 490.
30. See, e.g., Vorenberg 11, supra note 18, at 680-81. Professor Vorenberg offers
the possibility of legislation requiring prosecutors to charge the most serious
offense supported by probable cause, although he acknowledges that it would be
unrealistic to expect such legislation in the short run, and allows for the possibility
that there may be some circumstances where some discretion should be permitted.
31. See, e.g., Ernest van den Haag, Limiting Plea Bargaining and Prosecutorial
Discretion, 15 CUMB.L . REV. 1, 19 (1984). Dr. van den Haag proposes a rule
requiring prosecutors to bring all charges where there is or likely will be sufficient
674 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I992
prosecutorial agency.s2
Nevertheless, the notion of broad, prosecutorial charging
discretion enjoys much support.3s significantly curtailing
prosecutorial discretion would accomplish consistency at the
cost of individualized justicees4 If discretion to charge is
justified, then that justification necessarily extends to the
discretion not to charge.35 And that discretion justifies not
only eliminating unprovable casess6 but also protecting
citizens from charges that do not advance societal interest^.^'
Whatever disagreement exists about the appropriate extent
of prosecutorial discretion, there is a consensus that some
degree of discretion is ine~itable.~T' o some extent, this
consensus is born from a recognition that the resources of the
criminal justice system do not permit the prosecution of all
offenders.3g More significantly, even. those who would limit
prosecutorial discretion do not generally target prosecutorial
assessment of the nature and strength of the evidenceO4O
Within the broad notion of prosecutorial discretion, a
distinction must be made between factors that lend themselves
to some degree of systematization and those that do not.41T he
former category focuses upon offenses generally, such as
prosecutorial decisions not to enforce anachronistic penal laws
like adultery, or decisions to charge felony sales of small
quantities of controlled substances as misdemeanor
possessions. The latter category would include case-specific
evidence to make conviction possible, with a possible exception for cases that
cannot lead to prison sentences.
32. See, e.g., North, supra note 16, at 133 (calling for the establishment of
uniform charging policies within a prosecutorial agency).
33. See, e.g., Pugach v. Klein, 193 F. Supp. 630, 635 (S.D.N.Y.1 961); Charles
D. Breitel, Controls in Criminal Law Enforcement, 27 U. CHI. L. REV. 427, 427
(1960); Note, Nonfeasance: A Threat to the Prosecutors' Discretion, 30 IND.L .J. 74,
78-79 (1954).
34. Norman Abrams, Internal Policy: Guiding the Exercise of Prosecutorial
Discretion, 19 UCLA L. REV. 1, 5 (1971).
35. Breitel, supra note 33, at 430.
36. Note, supra note 33, at 76.
37. Cf. Fisher, supra note 11, at 231-32.
38. See, e.g., DAVISs,u pra note 13, at 195; DOUGLASSs, upm note 5, at 2;
Breitel, supra note 33, at 427.
39. Jackson, supra note 7, at 5; North, supra note 16, at 133.
40. See Vorenberg I, supra note 8, at 1547.
41. See genemlly, Abrams, supra note 34, at 11; Charles W. Thomas & W.
Anthony Fitch, Prosecutorial Decision Making, 13 AM. CRIM. L. REV. 507, 513-17
(1976) (classifying fadors which influence charging decisions as objective or
subjective).
6691 PROSECUTORIAL DISCRETION 675
factors, such as the quantity and quality of the evidence of
guilt. There is no serious quarrel with the proposition that a
prosecutor must engage in such case-specific eval~ations,4~
and most would agree that these evaluations require that the
prosecutor make some factual findings:3 including, in many
cases, assessments of the credibility of witnessed4 It is this
latter category of discretion, or case-specific assessment, with
which we are here concerned. And there can be no serious
dispute that this type of discretion is not only inevitable, but
also desirable.45
The desirability of case-specific evaluations by prosecutors
becomes clearer when one considers that the alternative is not
a system without discretion, but rather a system in which case-
specific discretion is abdicated entirely to the police. Police
officers have discretion to arrest or not to arrest:6 and the
exercise of that discretion enjoys a good measure of public
expectation and support!7 They may warn for minor
infraction^.^^ Even in serious cases, police officers sometimes
evaluate the credibility of witnesses in exercising their
dis~retion.P~o~lic e officers are selective, not only in making
arrests, but also in determining where to devote limited
42. See, e.g., MILLER,s upra note 11, at 34.
43. See Fisher, supra note 11, at 229-30.
44. H. Richard Uviller, The Unworthy Victim: Police Discretion in the Credibility
Call, LAW& CONTEMPP.R OBS., Autumn 1984, at 15, 31.
45. Those who criticize American prosecutors as possessing unnecessary
discretion frequently point to their German counterparts as a model of a more
desirable system "where the discretionary power of prosecutors is so slight as to be
almost nonexistent." DAVIS,s upra note 13, at 224. See also id. at 191-95. It is true
that the German prosecutor theoretically has no discretion and is compelled by law
to prosecute all offenders (with certain limited exceptions). Klaus Sessar,
Prosecutorial Discretion in Germany, in THE PROSECUTO2R5 5, 255-57 (William F.
McDonald ed., 11 Sage Criminal Justice System Annuals, 1979). However, there is
considerably more discretion-at least in the case-specific evaluation sense of that
term-in practice than in theory. Id. at 262. German prosecutors do dismiss cases
for insufficient evidence, id. at 264, and German prosecutors use problems of proof
to create charging discretion, id. at 272.
46. DAVIS,s upra note 13, at 18, 81-83; Joseph Goldstein, Police Discretion Not
to Invoke the Criminal Process: Low Visibility Decisions in the Administration of
Justice, 69 YALEL .J. 543 (1960); LaFave, supra note 23, at 532 n.2; Note, supra
note 33, at 75.
47. Uviller, supra note 44, at 28; Gregory H. Williams, Police Discretion: The
Institutional Dilemma-Who Is in Charge?, 68 IOWAL . REV. 431, 432 (1983); Note,
supra note 33, at 75.
48. Goldstein, supra note 46, at 559 11.27.
49. Uviller, supra note 44, at 28.
676 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [I992
investigative resources,50 and these decisions are not normally
controlled by the prosec~tor.~'
Obviously, potential prosecutions screened out by police
decisions not to investigate or not to arrest will ordinarily
receive no review by the prosecutor's office.52 But the cases
which the police bring to the prosecutor--either in the form of
a completed arrest, an application for an arrest warrant, or a
request for a grand jury investigation-will ordinarily receive
some degree of independent scrutiny by the prosecutor. If that
independent scrutiny does not take place-either because of
some external or self-imposed limitation on the exercise of
prosecutorial discretion-then the decision to charge will
effectively have been made solely by the police.
Nevertheless, there are prosecutors who do not recognize
the power to, or necessity for, reviewing police charging
decisions.53 In some cases, prosecutors rely upon the arrest
warrant, the grand jury or the preliminary hearing as a
substitute for their own case-specific e~aluation.N~o~n e of
these procedures, however, provides a sigdicant check upon
the prosecutor's decision to charge, and consequently, none
provides any justification for the prosecutor's abdication or
deference to the case-specific discretion of police officers.
The arrest warrant55 is obtained by an ex parte
application to the court. Generally, the decision to issue the
warrant is based solely on the affidavit of a police officer, and
the court does not make any further inquiry of the officer at
the time the warrant is issued. Moreover, when the officer is
not an actual witness to the crime, the officer's affidavit simply
relays information from others whose credibility has been
evaluated, if at all, by the officer.56 The warrant is issued
upon the minimal standard of "probable cause" that a crime
50. Id. at 15; Breitel, supra note 33, at 429.
51. DOUGLASSs,u pra note 5, at 157.
52. BRIANA . GROSMANT, HE FQOSECUTOR:A N INQUIRY INTO THE EXERCISEO F
DISCRETION44 (1969); Abrams, supra note 34, at 2 n.4; Goldstein, supra note 46,
at 543; LaFave, supra note 23, at 532 n.2.
53. JOAN E. JACOBY, THE PROSECUTOR'SC HARGINGD ECISION: A POLICY
PERSPECTIVE 15 (1977).
54. Id.
55. Most arrests do not require a warrant. See United States v. Watson, 423
U.S. 411 (1976). Most arrests are, in fact, made without an arrest warrant. WAYNE
R. LAFAVE& JEROLDH . ISRAEL,C RIMINAPLR OCEDUR1E4 1-44 (1985).
56. See Abraham S. Goldstein, The State and the Accused: Balance of
Advantage in Criminal Procedure, 69 YALEL .J. 1149, 1164 (1960).
6691 PROSECUTORIAL DISCRETION 677
has been committed and that the individual named in the
warrant committed it.57 The issuance of the arrest warrant,
then, is hardly a significant check upon the police officer's
judgment or the prosecutor's acquiescence theretoes8
Likewise, the grand jury is not a significant check on the
prosecutor's, or police officer's, decision to charge. Only about
one-half of the states require a grand jury indictment, and even
that requirement is generally limited to fe10nies.~'T he grand
jury process is ex parte and entirely controlled by the
prosecutor, trial rules of evidence are not generally applicable,
and the standard is, again, merely probable cause.60F or these
reasons, the grand jury offers little, if anything, in the way of a
screening mechanism on prosecution^,^^ and is frequently
referred to is a "rubber stamp" of the prose~utor.~~
The preliminary hearing .exists in most statesa3 and, in
contrast with the grand jury, is a judicial proceeding in which
the defense participates. Nevertheless, the minimal standard of
probable cause is routinely and easily met by the
go~ernment.M~o~r eover, where a grand jury indictment is
available and returned prior to the date of the preliminary
hearing, the preliminary hearing is generally una~ailable.~~
For these reasons, the preliminary hearing, like the arrest
warrant and grand jury indictment, cannot be regarded as a
significant check on the prosecutor's charging di~cretion.~~
57. Beck v. Ohio, 379 U.S. 89, 91 (1964). This evidentiary standard is less
exacting than the "preponderance of evidence" standard applicable to most civil
cases, CHARLESH . WHITEBREAD& CHRISTOPHERS LOBOGINC, RIMINALP ROCEDURE
4 3.03 (2d ed. 1986), and has been described by the United States Supreme Court
as a "substantial chance" or "fair probability" of criminal activity. Illinois v. Gates,
462 U.S. 213, 244 n.13, 246 (1983).
58. Cf. Goldstein, supra note 56, at 1164-65.
59. 1 SARAS . BEALE & WILLIAMC . BRYSONG, RANDJ URYLA W & PRACTICE
$ 2.03 (Cum. Supp. 1991); DAVID W. NEUBAUER, AMERICA'S COURTS AND THE
CRIMINAJLU STICSYES TEM2 01 (2d ed. 1984).
60. See, e.g., George T. Frampton, Jr., Some Practical and Ethical Problems of
Prosecuting Public Officials, 36 MD. L. REV. 5, 19 (1976); Vorenberg I, supra note
8, at 1537-38.
61. Goldstein, supra note 56, at 1171; Vorenberg I, supra note 8, at 1537-38,
1556.
62. Bubany & Skillern, supra note 18, at 483-84; Frampton, supra note 60, at
6; Kaplan, supra note 5, at 177; Vorenberg 11, supra note 18, at 678,
63. See Goldstein, supra note 56, at 1169 n.57.
64. Goldstein, supra note 56, at 1166, 1183; Vorenberg I, supra note 8, at 1538.
65. Bubany & Skillern, supra note 18, at 483-84; James R. Kavanaugh,
Representing the People of Illinois: Prosecutorial Power and Its Limitations, 27
DEPAULL . REV. 625, 636 (1978).
66. Bubany & Skillern, supra note 18, at 483-84; Goldstein, supra note 56, at